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The President Is Subpoenaed

The Supreme Court will soon decide three cases that involve an unprecedented attempt to subpoena financial and other personal records of a sitting President. These cases will inevitably involve judgments beyond mere law or even normal constitutionalism. The issues are different in fundamental ways from previous Supreme Court rulings about congressional investigations attendant to legislation and about the impeachment of President Clinton and near-impeachment of President Nixon. These three cases concern powers of Congress that are not expressly given by Article I of the Constitution. Directly at issue is not only the separation of powers but also the specific definition of each power. Moreover, two weeks ago, the justices asked for supplemental briefs addressing whether the use of these Congressional powers may be a nonjusticiable “political question,” though none of the parties involved seem inclined to make such an argument.

This article deals with the first two cases, Trump v. Mazars and Trump v. Deutsche Bank, involving subpoenas by three Committees of the House of Representatives for personal and financial records of President Trump. The third case concerns subpoenas for President Trump’s tax records by Cyrus Vance, the Manhattan (NYC) district attorney. Arguments in all three cases were postponed because of the coronavirus and will now be heard via teleconference on May 12.

In these cases, the President of the United States, Donald Trump, mentioned by name in the subpoenas, has sued personally and with his own counsel to have the subpoenas quashed. The role of the Department of Justice is that of amicus.

Congress’ “Auxiliary” Power of Investigation

In what may be unique in contemporary constitutional jurisprudence, the primary precedent is an 83-year-old case. In McGrain v. Daugherty (1927), Mall Daugherty, brother of President Warren Harding’s attorney general, Harry Daugherty, refused a subpoena to appear before a Senate committee to testify against his brother concerning the Teapot Dome scandal. The committee itself issued a subpoena and then an arrest warrant which was served on Daugherty by a Senate sergeant at arms. The Court upheld the warrant and held that although “no provision” of the Constitution “expressly” authorizes investigations, Congress does have “such auxiliary powers as are necessary and appropriate to make the express powers effective.” “Neither house,” however, “is invested with ‘general’ power to inquire into private affairs and compel disclosures.” The Court thus overturned a finding of the district court that the Senate was engaging in a “judicial function.”

In the Mazars case, the House of Representatives, arguing that the Supreme Court “has repeatedly upheld Congress’ ability to issue legislative subpoenas,” cites the unanimous decisions of the Court in United States v. Nixon (the 1974 case in which the Court denied President Nixon’s claim for “presidential immunity” from disclosure of internal White House communications) and Clinton v. Paula Jones (the 1997 case in which the Court ruled that President Clinton could be subjected to civil suits about his conduct before he became president). However, those precedents receive secondary attention. Instead, the House, in both the Mazars and Deutsche Bank cases, relies on the rulings of the D.C. and Second Circuit Courts of Appeals, respectively, for its major legal arguments.

Downplaying the large constitutional questions concerning the definition of the three powers of government and their separation, the Mazars opinion of the DC Circuit upholding the House subpoenas is largely limited to an affirmation of the McGrain principle that Congress does indeed have an investigatory power as an adjunct to its legislative power. The Mazars subpoenas are “a valid exercise of the legislative oversight because [they seek] information important to determining the fitness of legislation to address potential problems with the Executive Branch and the electoral system” (emphasis in original). In accordance with that, the House committee “is pursuing a legislative, non-law-enforcement purpose.”

Like the DC Circuit’s opinion, the similar holding of the Second Circuit in Deutsche Bank is based on the same kind of general endorsement of what it regards as an essentially unreviewable power of Congress to investigate. And the presidency itself may serve as a test case, for the Circuit cites and quotes with approval an argument made by the House in the district court that “Because of his prominence, much is already known about Mr. Trump, his family, and his business, and this public record establishes that they serve as a useful case study for the broader problems being examined by the Committee” (emphasis added).

As rationales for the subpoenas for President Trump’s personal financial records, the House Oversight Committee in Mazars offers, inter alia, President Trump’s relationship with his former lawyer, the now-convicted Michael Cohen, and the 2013 lease of a federal property, the Old Post Office, to a Trump company which, the Committee asserts, may be a continuing violation of the Emoluments Clause of Art II, § 1 which prohibits a president from accepting “other emoluments” besides his “compensation.” A “common thread” in the Committee’s investigations are “President Trump’s extensive financial interests.” And those concerns about Trump, the Committee says, bring up more general questions related to possible legislation “concerning financial disclosures, government contracts with federal officeholders, and government ethics.”

Are the stated legislative purposes of the subpoenas mere pretenses for conducting both a civil and an impliedly criminal investigation of Trump?

In Deutsche Bank, the subpoenas by the House Financial Services Committee to Deutsche Bank and the bank holding company Capital One seek documents relevant to its investigation of “money laundering and terrorist financing in the real estate market” and “compliance with the Bank Secrecy Act.” In connection with those concerns and because “President Trump’s business affairs have been the subject of many public reports,” the personal accounts, not only of President Trump, but also of three of his children are subpoenaed. The Intelligence Committee subpoenas to Deutsche Bank seek the same financial records as the Financial Services Committee for the purpose of investigating “the President’s foreign financial ties and the extent of foreign powers’ influence over him and our elections.” The stated rationale is to address the “possible need for legislative reforms” as to whether current laws and federal agency structures are “adequate to combat such threats to national security.” 

The Singular Executive

The Justice Department in its amicus brief introduces its overall constitutional argument by pointing out that “These cases involve the first attempt by congressional committees to demand the personal records of a sitting President of the United States.” The Department concedes that, although a power to “conduct investigations or to issue compulsory process” is not enumerated in Article I, such a power to investigate and compel—including “into private affairs”—was conceded and eventually recognized explicitly in McGrain as an “auxiliary power to make the express powers effective” and as “an adjunct to the legislative process” by Watkins v. United States (1957). Further, DOJ continues, this auxiliary power is “subject to recognized limitations,” as set out in Quinn v. United States (a 1955 case which, like Watkins, dealt with the communism investigations of the House Un-American Activities Committee). The most important of these limitations is a denial of any power of “law enforcement,” such power being “assigned under our Constitution to the Executive and the Judiciary.” Regardless of any stated legislative purpose, DOJ asserts, the House has really acted with “the impermissible object of exposing illegality for its own sake,” that is, by making the subpoenas against Trump “a useful case study.”

The Department goes on to criticize the Mazars subpoenas for failing to show any critical connection to possible legislation about presidential conflicts or emoluments, or how information about Trump’s personal finances, including before he became President, could “in theory” lead to amendments to financial disclosure laws. Concerning the Deutsche Bank subpoenas, DOJ contends that Congress’ authority and jurisdiction in investigating a “far reaching public problem” such as money-laundering laws does not provide a rationale for the House to make the President “the primary target” of an investigation into that area. The House has exceeded even its normal, wide-ranging discretion in doing so. Likewise, on laws and possible amendments concerning foreign influence on elections, the House has not shown why the President should be “the primary target” in an examination of such laws. These excesses of the House violate the separation of powers, DOJ maintains.

The Department points out that the “executive power,” unlike the other two powers of the federal government, is vested in its “entirety” in “a single person” and, therefore, requires “special solicitude” from both the Congress and the judiciary, both of which branches are “plural.” The President’s powers and “official responsibilities,” of faithfully executing the laws, commanding the armed forces, and “speaking for all the people of the United States,” are “unremitting” and subject to no “adjournments.” Citing Nixon v. Fitzgerald (1982), which held that a president is not subject to civil damages for his acts as president, DOJ concludes that “the President enjoys a constitutional immunity from actions of coordinate Branches that threaten to undermine his independence or interfere with his functions.”

In his own brief, Trump contends that the House cannot subpoena his private records as “it wishes” simply by asserting that it is “considering legislation.” In addition, while conceding that Congress has the power to investigate attendant to lawmaking, Trump points out that the power is only “implied, not express,” in the Constitution and should not be used to “alter the structure of government.” Here, the House clearly “presses the outer limits of its constitutional authority.”

Congress has no power to “[expose] private details about individuals,” yet this is the intent behind the House’s “case study,” Trump argues. The “primary purpose” of the subpoenas is “law enforcement,” and the Court should not allow the House to disguise such a “law enforcement effort” as a “legislative agenda.” Overall, the House has failed to meet what the Court should hold is a “heightened demonstration of need” to exercise a “subordinate” power of Congress.

A Political Question?          

In a surprise development, the Court on April 27 issued an order to the parties that they file short briefs by May 8, four days before oral arguments, to address the completely new issue of whether the “political question doctrine” applies to the case. The controlling precedent for that doctrine is still the Court’s 1962 decision in Baker v. Carr, in which the Court, laying down principles concerning what issues could be appropriately decided by the courts and what issues were left to the executive and the legislature, ruled that the redistricting of Congressional districts was justiciable under the Equal Protection Clause.  

Per their responses to the Court’s order, none of the parties—neither the House, Trump, nor the Justice Department—think that the cases involve a political question. The House Committees contend that they “need to be able to enforce their subpoenas,” and, likewise, “the courts should be available to provide the Executive Branch safeguards, should it ever need them.” But the Committees also state that they would be happy for the Court to dismiss the case, thus leaving the decisions of the two Circuits standing. Trump argues that the cases involve “exceptionally important questions regarding the separation of powers [that] should be decided on the merits.”  The Justice Department avers that deciding the cases as a political question “would in effect give congressional committees free rein to issue subpoenas to any third-party custodian without any meaningful checks or balances, because such third parties often would be inclined to comply (as the third parties in these cases have indicated they will).”

Constitutional Government in Partisan Times

Fundamentally, the constitutional jurisprudence has not advanced beyond the 1927 McGrain case. Congress has the “auxiliary” but not “general” power to “inquire” as part of its “legislative functions.” However, that jurisprudence has never before been put to the test of an exacting definition. It is now. When is that “general” power too general? And, conversely, when it is too specific? In 1927, both the legislative and any associated “investigatory” powers of Congress were more strictly limited by the enumerations in Article I. But after the New Deal, the Great Society, and successive decades, the legislative powers of Congress are now essentially unlimited. Are the Congressional subpoena powers likewise unlimited? And so unlimited as to include investigations of individuals?

Today, Congress does indeed have the authority to legislate on the subjects of money laundering, banking, and national security—and just about everything else—as the subpoenas and the three Committees’ Supreme Court brief assert. But in these cases, are the stated legislative purposes of the subpoenas by the three House Committees mere pretenses for conducting both a civil and an impliedly criminal investigation of Trump? Regardless, even if the “general” purpose be conceded, what is the constitutional meaning of using that general power against an individual? Is it not the executive branch’s function to enforce federal law, either through a federal agency’s civil suit or a Department of Justice prosecution? The Committees do have the expansive agreement of the two circuit courts of appeals below essentially stating that anything goes regarding the legislative powers of Congress. Per such rulings, Congress self-justifies its own self-definition of its powers—hardly the jurisprudence of a government of express and limited powers.

In its brief, the Department of Justice, citing Federalist 51, discusses the “harassment and distraction” a president may experience when “his political adversaries control one or both chambers” of Congress. Indeed, these cases exist in what may be an unprecedented climate of political rancor where respect for the separation of powers is often subordinated to partisan interests. The Supreme Court has a hyper-delicate judicial task before it.

Reader Discussion

Law & Liberty welcomes civil and lively discussion of its articles. Abusive comments will not be tolerated. We reserve the right to delete comments - or ban users - without notification or explanation.

on May 11, 2020 at 14:45:02 pm

Important issue. Just worth to note, the issue of immunity of the Congress in such investigations ( speech and debate). Also worth to note, that it is a relative immunity. Not procedural one. Can be brought to court ( not rejected " in limine" ) . But, the court, wouldn't observe motives, but, I quote ( district court of Columbia, in the case of Trump):

" Once a court finds that an investigation is one upon which legislation could be had, it must not entangle itself in judgments about the investigation’s scope or the evidence sought. Only an investigative demand that is “plainly incompetent or irrelevant to any lawful purpose of the [committee] in the discharge of its duties” will fail to pass muster."

Thanks

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El roam
on May 11, 2020 at 15:08:58 pm

Ahh! BUT the Court may inquire as to the scope of the motives and hostility evinced toward the respondent AND this Court has done so in the recent past.
Masterpiece Cake v colorado Civil Rights in which the court recognized the pretextual basis of the charge and the decision:

"Factors relevant to the assessment of governmental neutrality include “the historical background of the decision under challenge, the specific series of events leading to the enactment or official policy in question, and the legislative or administrative history, including contemporaneous statements made by members of the decision making body."

and

"That consideration was compromised, however, by the Commission’s treatment of Phillips’ case, which showed elements of a clear and impermissible hostility toward the sincere religious beliefs motivating his objection. As the record shows, some of the commissioners at the Commission’s formal, public hearings endorsed the view that religious beliefs cannot legitimately be carried into the public sphere or commercial domain, disparaged Phillips’ faith as despicable and characterized it as merely rhetorical, and compared his invocation of his sincerely held religious beliefs to defenses of slavery and the Holocaust. No commissioners objected to the comments. Nor were they mentioned in the later state-court ruling or disavowed in the briefs filed here. The comments thus cast doubt on the fairness and impartiality of the Commission’s adjudication of Phillips’ case."

and

"The State’s interest could have been weighed against Phillips’ sincere religious objections in a way consistent with the requisite religious neutrality that must be strictly observed. But the official expressions of hostility to religion in some of the commissioners’ comments were inconsistent with that requirement, and the Commission’s disparate consideration of Phillips’ case compared to the cases of the other bakers suggests the same"

Now substitute Trump for Phillips and political beliefs for religious beliefs and VOILA!

Also in recent "Citizenship Question" for the 20202 census, the Court concluded that the Executive Agency Head had provided no more than a pretectual basis for including the citizenship question and while holding that the question itself was permissible, the underlying pretextual motive disallowed it.

So, do you think that we can find sufficient hostility on the part of the House to support a conclusion that the subpoenas and the false claim that such subpoenas are in furtherance of valid legislative objectives are pretextual?

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gabe
on May 11, 2020 at 16:49:32 pm

As I have explained, we deal here, among others, with speech and debate immunity ( dictated by the constitution). As such, the judicial review is narrow ( relatively ). This thing derives out of the constitutional immunity granted to Congress members. So, cases you brought here, are not analogous ( for they deal with administrative law, and ordinary one as such). I quote from the ruling, brought by me in my first comment. Here:

The court also was cognizant of the fact that the Constitution’s Speech or Debate Clause forecloses Plaintiffs from compelling discovery from the Oversight Committee, its Members, or staff.

End of quotation:

As such, we deal here, with legislative purpose ( on the face of it). One can't challenge the very duty of that branch, to legislate, and investigate for it. Unless on the face of it, something is manifestly wrong according to courts so far.

Thanks

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El roam
on May 11, 2020 at 18:13:13 pm

My sarcasm apparently was missed. My bad! I disagreed with the Court when they based a determination upon "motive" pretextual or otherwise.

Yet, I am not certain that this instance should revolve around "speech and debate immunity."
A subpoena is neither speech nor debate and the issuance of one may or may not be in furtherance of speech / debate; nor is there any valid investigation underway within the Legislative that would otherwise justify a subpoena or conceivably result in legislation.
Moreover, while the court is and ought to be more deferential to the Legislative than the Federal Administrative Agencies, it also ought not to abandon reasonable and proper review of Legislative action. The asserted difference between Administrative Agency and Legislative products serves to obscure the fundamental similarity, i.e., both involve a dispute between two co-equal branches of Government and both require the Court to resolve the matter. The court may not permit a separation of powers violation when the Legislative is involved BUT not when the Executive is involved (if that be the case).
Would "speech / debate immunity" allow the Legislative to initiate a subpoena against the local hot dog vendor, examine his finances, revoke his license and claim that "We are interested in determining IF we may, AT SOME FUTURE TIME, but not now, decide to legislate on the length of hot dogs and hot dog buns"?
There is a limit, is there not?

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gabe
on May 11, 2020 at 18:22:13 pm

Yes, the point is motives. Since they have immunity ( relative one as explained ) one should not question their motives, according to courts so far. That's it ! Immunity, and deference to inherent duty of that branch. I have left the link in separate comment here, read it.

Thanks

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El roam
on May 11, 2020 at 18:28:41 pm

Yes, there is a limit. Read the ruling, read the citation of my first comment , you would understand. And that is what post is about: Auxiliary power. Means , in order to carry out the duty of legislation, you need to have means for fulfilling it. Here, it is by investigation, and subpoeana. In order to legislate, you need to trace and define the problem ( in other branches). And how would you understand the existing problem, without investigate it. Without hearing testimonies. Testimonies, means : compelling someone, to appear in from of such or such committee. That's it.

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El roam
on May 12, 2020 at 07:08:56 am

Just correction to my last comment:

Instead of:

" to appear in from of such or such committee"

Should be:

" In front of such or such committee"

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El roam
on May 11, 2020 at 17:08:02 pm

Just link to the ruling cited by me:

https://games-cdn.washingtonpost.com/notes/prod/default/documents/63e1224a-e3d2-4910-b596-06bc0ecc286c/note/9213817e-1fef-4300-95b3-33fb16fcc41c.pdf

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El roam
on May 12, 2020 at 09:57:22 am

What does the "speech and debate" clause have to do with whether Congress may pursue a man's tax records? It may ARGUABLY immunize the House Committee from judicial scrutiny of its motivation. Language and logic would hold otherwise, but, notwithstanding the new-found, illicit judicial curiosity as to pre-textual motivation for Trump's exercise of Article II powers, I am certain the Court is not going to go there with Congress. The Court dislikes Trump 5-4 because of Roberts, but it fears Congress 5-4 because of Roberts, which explains the outcome of the Census case and why the Court in Trump vs. Mazars is going to ignore the elephant sitting on the Court's Bench, a beast large enough for the Court to take judicial notice of its presence: the fact that the subpoenas of Trump's tax records are politically-motivated, not legislatively inspired.

However, the S&D Clause has nothing to do with and certainly does not preclude a judicial determination of whether the Committee is, on its face, pursuing a legislative function or whether Congress is transgressing the separation of powers by conducting a personally-targeted factual investigation that is both predicate and tantamount to a law enforcement action. There is a long-standing judicial recognition of the intrinsic differences in the nature of legislative and judicial fact-finding, a distinction which abjures the power of Congress in its legislative exploration to exercise judicial-fact finding by focusing on the activity of a single individual, especially when the constitutional right of privacy is involved, when legally protected documents are the legislative target and when the investigation can readily be viewed as properly the object of law enforcement, a power not among the enumerated powers of Congress.

All of those factors are present here, as reflected in the type of documentary evidence the Committee seeks (constitutionally-protected personal financial records which are also specifically protected by two federal statutes) and in the fact that Congress seeks legally- protected documents from the President of the United States while he is still in office, a legislative reach with the appearance of a grab across the constitutional wall of Separation of Powers.

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Paladin
on May 12, 2020 at 10:53:54 am

Balderdash to this "immunity".
All this clause guarantees is that the legislator shall not face prosecution for any speech, no matter how inflammatory, mendacious or disruptive / insurrectionist it may be NOT that a Court may not take judicial notice of it.
Consider our current diktats, oops, I mean laws on "hate speech" A Legislator issues forth with a rancorous diatribe against blacks or trannies during a legislative session. He or she may not be charged with a violation of these irksome laws. It extends no further than that.
As our Black Robed friends have now arrogated to themselves the authority to "divine" the motives behind certain legislative and / or Administrative Acts, wrongly I argue, it is quite probable that the Robed Elect would consider the statements made by the Legislator in determining whether the rationale for the rule / law was simply pretextual. What is the motive, they would ask.
But not unlike in a criminal trial, motive is not an essential element of the crime that MUST be proved by the prosecution (except on Law & Order). There are other means available to the Court and they should have availed themselves of those other means in both cases I cited.

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gabe
on May 12, 2020 at 11:54:26 am

Just listened to the oral argument.
6-3 maybe 7-2 against the House.
What is facially put forth as a "legislative purpose" is based on implied powers not powers expressly delegated. The ostensible "legislative purpose" here is colored by strong tones of law enforcement against and investigation to expose the personal, private information of a specific individual which are not Congressional powers. The subpoenas strike at the separation of powers, threaten undue presidential burden while lacking any showing that they are critical to, let alone justified by and relevant to a constitutionally-recognized legislative need for specific personal information. Finally, the Congress offers no limiting principle by which the constitutional barriers of separation of powers and presidential burden might be addressed.

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Paladin
on May 12, 2020 at 14:09:59 pm

Trump vs. Vance was argued just now. The case shows two important things. First, the case shows, secondarily, that Jimmy Carter's feckless, liberal, long-dead Secretary of State has, alas, lived on through his criminal prosecutor son to plague the country with obstructionist Democrat politics. Secondly, the case shows primarily that NYC's Mayor and NYC's Manhattan Prosecutor closely coordinate to a "Tee" their in-court criminal pursuit of President Trump with the parallel ''legislative purpose" attack of House Democrats in the Congress, also heard today in the Supreme Court. The political co-conspirators even issued subpoenas for the same Trump documents, NYC copying the Hose subpoenas.
Together the House Democrats and New York state and City Democrats comprise an ideological cabal engaged in a federal-state political conspiracy to abuse the courts, the Congress and the rule of law to destroy the Trump presidency if they can, block it wherever they might and harass it always.

Only the Supreme Court can block this intolerable conspiracy, and it can do so simply by doing its job, by applying the U.S. Constitution.

In Trump vs. Vance the appropriate decision is to hold that the president (who cannot be criminally prosecuted while in office) is also immune while in office from the burden of responding in any fashion to state criminal investigations unless the prosecutor shows a special, compelling need that the president do so while still in office and clearly demonstrates that doing so will not burden the president in the performance of his Article II duties either at the time of his response or thereafter while the president remains in office and that there are adequate state laws and procedures to assure that as a result of the president's response to the state criminal investigation neither presidential nor personal information will be publicly disclosed, used or leaked while the president is in office.
That is a constitutionally-necessary, strong burden of proof if the presidency is to be protected. That burden has not been met by NYC.

Having listened to the oral argument just now I think that there is a reasonable prospect of a decision along the lines I have described. Roberts, the new Kennedy, will have the final say.

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Paladin

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